ASSET FORFEITURE IS REVERSIBLE
Law enforcement officials who suspect persons are operating an illegal enterprise may seize personal assets and sell personal assets. This means innocent owners of homes, vehicles, cash, bank accounts and high-end personal items may have their property seized and sold at auction. It’s embarrassing, inconvenient and may jeopardize a family’s future. In addition, Federal Agents may seize and forfeit property at the border and Federal Agents may seize and forfeit firearms.
The law regarding forfeiture is complex. State and Federal law enforcement officers are governed by different rules. Federal rules are more complex and can control in many instances. Today, we’ll briefly look at why federal law enforcement officers are able to take property without arrest and some options you will have in reclaiming property taken. To be successful, you will need skilled and experienced attorneys because, to recover the property, you must meet strict deadlines and know the law. Very importantly, there are times when seized property can exonerate an accused person. A knowledgeable attorney, acting with your interests in mind, can request a litigation hold, perhaps for DNA testing, and then he or she can demand that the property not be processed for forfeiture.
- What is the justification for federal agents seizing property?
According to the United States Department of Justice Asset Forfeiture Manual (the “Manual”), “The mission of the Asset Forfeiture Program is to disrupt and dismantle criminal enterprises, deprive criminals of the proceeds of illegal activity, deter crime and restore property to victims.” However, the Manual also points out that federal forfeiture of assets must be “appropriately and effectively used consistent with civil liberties and the rule of law.”
Most of the time, property is seized as evidence. When the need for the evidence at a trial is ended, the property must be returned. However, personal property such as cars, boats, cash and jewelry can be seized and kept if the item was used to facilitate a crime or is proceeds of a crime. In Florida v. White, the Supreme Court specifically held in 1999 that the seizure of an automobile without a warrant did not violate the U.S. Constitution if there is probable cause to believe that the automobile was used in a crime and it was found in a public place. In addition, courts have held that police may seize an automobile, search it, and seize any currency and evidence they find if they have probable cause to believe the vehicle was used to facilitate a crime, such as a drug offense.
- How to obtain the release of your property?
Federal law provides for “quick release” of certain property such as property belonging to an innocent owner or property the release of which serves to promote the best interest of justice or the Government. (28 C.F.R. Section 8.7). Lawyers at Perlet, Shiner, Melchiorre and Walsh have the experience working with the Federal Government and Federal Agents in order to obtain “quick release.”
There are several methods that federal attorneys use to forfeit property. Lawyers employed by the federal government may forfeit property through administrative and civil proceedings. In addition, federal prosecutors may add forfeiture proceedings to criminal cases. A good defense attorney will work with the lawyers for the federal government to meet all the necessary deadlines involved in these various types of proceedings and to negotiate a return of the property. The federal government, in all forfeiture proceedings, must give NOTICE of the forfeiture. That notice MUST be taken to an experienced defense attorney right away. Federal law requires that written notice of an administrative forfeiture action by a federal agency be sent to interested parties as soon as practicable but no later than 60 days after the date of the seizure.
To get your property back, your claim to the property must be filed under oath. Your attorney will assist you in this process. The claim must identify the specific property seized, identify you as the “claimant,” state the claimant’s interest in the property, be signed by the claimant under penalty of perjury and be properly served on the United States government attorney handling the case. An experienced attorney is a must.
The good news is, in some cases, a claimant who wins in a federal civil forfeiture litigation action can seek an award of his or her attorney’s fees and other litigation costs. Your attorney can use this provision as an incentive for the government to negotiate the return of the property.
- Firearms are treated differently.
Forfeited firearms are not sold by the federal government. They are usually destroyed. It is possible for forfeited firearms to be placed into federal official use by the United States Marshals Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) or another federal agency for law enforcement purposes or other reasons such as, ballistics testing or display. Sometimes, in a criminal case, the Federal Judge may permit the transfer of seized firearms from a convicted felon to a person of the felon’s choosing so long as that person will not grant the felon access to or follow the felon’s instructions about the future use of the firearm. (Henderson v. United States, 135 S.Ct. 1780 (2015) interpreting, Title 18, United States Code, Section 922(g)). This is an area of forfeiture law requiring special expertise.
- Reversal of Forfeiture is Possible if you have a good lawyer.
Challenging the government’s decision is important. Courts will review whether substantial cause for seizure existed, and whether procedures in collecting assets were followed according to law.
The team at Perlet, Shiner, Melchiorre & Walsh, P.A. in West Palm Beach is ready to challenge forfeiture proceedings. We have 5 former prosecutors and have recently added Nancy Vorpe Quinlan, of counsel, a former federal prosecutor with 20 years of experience with the U.S. Department of Justice. If you’re an individual who has lost property or money due to state or federal raids, call us immediately. We could not only return your assets, but also restore dignity lost when neighbors and family members witnessed this raid.
Policy Manual: Asset Forfeiture Policy Manual (2016)
Florida v. White, 526 U.S. 559 (1999)